Gender-just laws versus “divine” law in Sri Lanka

The heated debate over reforming Muslim personal law
in Sri Lanka has resulted in an unprecedented mobilization of Muslim women across the
country calling for progressive and gender-just laws.

The debate over reforming Muslim personal law in social media and the mainstream press in Sri Lanka.

Securing equality within the family
remains one of the biggest challenges for women across the world. Central to
this is the struggle to rewrite personal status and family laws that are deeply
hetero-patriarchal. Sri Lanka’s constitutional reform process has brought this
into sharp focus particularly with respect to equality in the family for Muslim
women. At its center are Article 16(1) of the current Constitution and Sri Lanka’s Muslim Marriage and Divorce Act
(MMDA).

Sri Lanka’s MMDA, which is applicable to the Muslim minority
community, was first codified during Dutch and later British colonial rule as
part of a plural system of family laws. Successive post-independence
governments guaranteed the maintenance of the MMDA, while recognising the
prerogative of the Muslim community to reform these laws at their own
initiative. Since then the MMDA was ‘reformed’ by male elites in 1929 and then
again in 1956, ostensibly to reflect the ‘true spirit of Islam’. Yet the
efforts of Muslim women’s rights
activists, who have for more than 20 years, been calling for reform of these
laws to reflect the values of gender justice and equality have been to no avail.
Political parties claiming to represent Muslims have long refused to
push for progressive and gender-just reform of personal law for fear that such
reform will alienate their vote bank. Muslim women have also been unable to rely on Article 12 of the Constitution,
which guarantees gender equality due to the presence of Article 16 of the
Constitution. The latter holds
that that all unwritten and written laws at the time the Constitution came into
effect (1978) shall remain valid and operative notwithstanding any
inconsistency with its fundamental rights guarantees.

An example
from 1995 illustrates this point only too well. When the age of marriage for
males and females was raised to 18 in 1995, it excluded Muslims. This was
justified by the then Minister of Justice on grounds that the ‘Muslim community
is entitled to be governed by their own laws, usages and customs and it would
not be productive to aim at a level of uniformity which does not recognize
adequately the different cultural traditions and aspirations of the Muslim
community’. This ‘respect’ for the cultural rights of minorities was however an
all-too-transparent mask for a patriarchal bargain between political parties in
a coalition government ruled by entrenched ethno-religious identity politics.

However, the present Constitutional reform
moment has sparked a fresh debate and discussion around the MMDA and given rise
to an unprecedented mobilization of Muslim women across the country demanding its
reform. Lead by community-based women activists and a new generation of Muslim
women who have come together under the banner of the Muslim Personal Law Reforms Action Group (MPLRAG), they are calling not only on
the Muslim community and its leadership but on the State to assume
responsibility to ensure that Muslim women and girls enjoy equal rights as
citizens of Sri Lanka.

Social media platforms such as Whatsapp,
Twitter and Facebook and increased news reporting on the issue acted as the
catalysts for this unprecedented mobilization of Muslim women. It is now
manifesting itself in a slew of writings - personal opinion pieces as well as
more analytical writing - demanding substantive reform by pro-reform
Muslim women, and a (few) men, in the mainstream press as well.

Discrimination under Muslim
Marriage and Divorce Act in Sri Lanka

Discrimination under the MMDA takes multiple forms. Under
the Act, adult women need the consent of male guardians to marry while men
can marry up to four times, without any conditions. Husbands have a right to
unilateral and unconditional divorce while wives have to prove fault, show
evidence, produce witnesses and go through multiple hearings before Quazis, a position which the MMDA
reserves for exclusively for ‘male Muslims of good character’ though it is paid
for from public funds.

The current controversy over the MMDA centers in
particular on the resistance from powerful and conservative sections within the
community to reform on two counts: stipulating a minimum age of marriage and recognition
of women’s right to be appointed as Quazis.
At the forefront of this resistance are the All Ceylon Jamiyyathul Ulama (ACJU) and the Sri Lanka Towheed
Jamaat (SLTJ). A committee to reform
Muslim Law established by the state in 2009 (the Justice Saleem Marsoof
Committee), which includes the head of the ACJU, is yet to reach consensus
largely on these two issues even after 8 years of deliberations.

Arguments on social media and the press over Muslim personal law in Sri Lanka.

Progressive Interpretations and
retrogressive resistance

There is a long history of women rights activists
demanding reform within an Islamic framework, presenting progressive
reinterpretations of the Quran and evidence from Malaysia and Indonesia, which also
follow the Shafi madhab (school of Islamic
jurisprudence) followed in Sri Lanka. Yet conservative Muslim groups have
consistently rejected this in favour of retrogressive and sexist
interpretations. Despite evidence to the contrary, calls for a minimum age of
marriage have been dismissed on the ground that child marriages are rare
exceptions within the Muslim Community.

The opposition to women as Quazi court judges stems from a range of deeply prejudiced and misogynist
views. These include that women are biologically weaker, especially due to menstruation,
emotionally unstable, have lower mental capacity, and are less capable of making
sound decisions and retaining knowledge and information needed to function as
judges. Meanwhile Muslim women have held and continue to hold positions of
authority in the judiciary and the legal profession in Sri Lanka and globally.

CEDAW, GSP plus and MMDA Reforms

In February
this year, Muslim women took their struggle before the UN, although not for the
first time. Sri Lanka’s eighth
periodic review by the UN Committee to monitor state compliance with the
Convention on Elimination of all forms of Discrimination against Women (CEDAW)
provided another platform to push for equality. Muslim women’s rights activists
not only highlighted the lack of progress on reforms, but also the increasing
intimidation faced by them and women who have shared testimonies, from conservative
actors within the community.

The Committee’s concluding observations, released in
March, makes several recommendations including calling on the Government of Sri
Lanka to: a) eliminate restrictions on women’s eligibility to be appointed as Quazis,
Members of the Board of Quazis (the Quazi appellate body), Marriage Registrars
and adjudicators; b) raise the
age of marriage to 18 years for all citizens; and, c) amend the Penal Code
statutory rape provisions to apply to all children without exception. Moreover,
the Committee has called on the government to amend the General Marriage Registration
Ordinance (GMRO) to give Muslims the choice to register marriages under the general
law and for the repeal of Article 16(1) of the Constitution to allow for
judicial review of all legislation including the MMDA.

These recommendations give an opportunity for the State
to address discrimination under the MMDA and the Quazi court system and establish basic non-negotiable rights for Muslim
women. However, can Muslim women rely on the Sri Lankan state to rise to
this challenge?

In November
2016, a senior minister told the media about a proposal to appoint a Cabinet Sub-committee to
consider suitable amendments to the MMDA (ignoring the existence of the Marsoof
committee). The reason he advanced was that “Muslim Law in Sri Lanka is
not in conformity with international norms” and amending “the Muslim Marriage and Divorce Act is also a part of
international protocol, which is a requirement to obtain trade benefits under
the Generalized System of Preferences (GSP plus)”.

This sparked a storm of protest by those resisting reforms. The ACJU issued
a press
statement that it “strongly opposes bringing
changes in the Muslim Personal Law either due to international pressures or
stimulation of any evil forces acting against the Muslims”. This year, associations such as the Colombo District
Masjid Federation (CDMF) with a network of 175 mosques, carried out signature
campaigns against reforms in various mosques. The CDMF issued an open letter signed by 15,000
signatories including the religious heads of the ACJU stating that to their
knowledge no public consultations had been undertaken by the Marsoof committee
and urging that any amendments to the MMDA “should not be, in contravention of
Divine Law”.

This conflation of ‘divine law’ and the MMDA is a common
tactic of those resisting reforms. That ‘Sharia
or divine law cannot be touched’ is frequently deployed as a conversation
stopper on MMDA reforms. This of course completely ignores the fact that local
cultural practices and secular laws in fact make up the provisions of the MMDA,
as well as the rich diversity in Islamic jurisprudence, legal tradition and
practice on this issue, which is globally evidenced.

Conservative actors have benefitted from the lack of
awareness about the MMDA, its origins and its problems among vast segments of Sri
Lankan Muslims. Many who believe that the MMDA is based entirely on divine and unchangeable
Sharia are most likely also unaware
of the daily-lived realities and violations against women and girls because of the
MMDA. Narratives of
injustices faced by Muslim women documented by activists and citizen
journalism websites are now attempting to address this gap.

Many mainstream
human rights actors also fail to understand the extent of the divergence of
viewpoints on MMDA reform within the Muslim community and tend to perceive that
consultation to reach consensus within community is the solution. This lack of
awareness all around has been debilitating for those struggling for reform.

Following the GSP plus fiasco, the Muslim Personal Law Reform Action Group pointed out that linking reform of MMDA to GSP plus gave room for those who had been resisting change to
characterize any change as an international imposition while erasing the long
standing struggle of Muslim women demanding for changes to this law. This also raises the question whether CEDAW
recommendations are now going to be characterized as more international
pressure to be resisted? And with this pushback, will the Sri Lankan State acting
in concert with male elites of the Muslim community continue discriminating
against Muslim women and girls and be party to these injustices?

Chulani Kodikara is reading for her PhD at the University of Edinburgh. She was previously senior researcher with the Consultation Task Force on Reconciliation Mechanisms conducting
public consultations on the design of transitional justice mechanisms in Sri
Lanka. She is the author of Muslim Family Law in Sri Lanka: Theory, Practice and Issues of Concern to Women and Women and Governance in Sri Lanka (with Kishali Pinto Jayawardena).

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